Barwick v Latec Investments Ltd [1966] HCA 54

Barwick v Latec Investments Ltd [1966] HCA 54

The borrower had given security to the money-lender for repayment of the loan, and s. 24 therefore barred the plaintiff from maintaining proceedings against the defendant guarantor on the promissory note and guarantee. The later insertion of s. 3B did not apply to the pre-7th December 1961 transaction, so it did not remove the defendant's entitlement to rely on s. 24.

Jurisdiction
Australia
Procedural Posture
Appeal by Leave From an Order Entering Judgment in Demurrer / High Court Appeal
Outcome
Appeal allowed with costs; order of the Supreme Court set aside; judgment in demurrer entered for the defendant on the first and second pleas.
Legal Topics
['money Lenders and Infants Loans Act S. 24' 'proceedings Against Guarantor Where Borrower Gave Security' 'promissory Note Not a Security Under S. 24' 'retrospective Operation of S. 3 B' 'demurrer']
['money Lending' 'contract Law' 'guarantees' 'security Interests' 'statutory Interpretation'] ['money Lenders and Infants Loans Act S. 24' 'proceedings Against Guarantor Where Borrower Gave Security' 'promissory Note Not a Security Under S. 24' 'retrospective Operation of S. 3 B' 'demurrer']

Case Brief

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Procedural Posture

Appeal by Leave From an Order Entering Judgment in Demurrer / High Court Appeal

Legal Issues

  1. 1 ['Whether s. 24 of the Money-lenders and Infants Loans Act prevented the money-lender from proceeding against the guarantor on the promissory note and contract of guarantee where security had been taken from the borrower but not from the guarantor.' 'Whether s. 3B inserted by the Money-lenders and Infants Loans (Amendment) Act, 1961 applied to a company loan exceeding £5,000 made before 7th December 1961 so as to prevent the defendant relying on s. 24.']

Ratio Decidendi

The borrower had given security to the money-lender for repayment of the loan, and s. 24 therefore barred the plaintiff from maintaining proceedings against the defendant guarantor on the promissory note and guarantee. The later insertion of s. 3B did not apply to the pre-7th December 1961 transaction, so it did not remove the defendant's entitlement to rely on s. 24.

Court Disposition

Appeal allowed with costs; order of the Supreme Court set aside; judgment in demurrer entered for the defendant on the first and second pleas.

Orders

  • ['Appeal allowed with costs.' 'Order of Supreme Court set aside.' 'In lieu thereof order that judgment in demurrer be entered for defendant on the first and second pleas.']